CHAP. XL. of the Acts. Considering these Acts as a whole, it will be seen that their General effect effect, in cases to which they apply, is to altogether reverse the former law as to the exoneration of mortgaged estates, and to throw upon the devisee of a deceased mortgagor who seeks to lease mortgaged lands of any tenure exonerated out of the assets, the burden of showing that the mortgagor has by his will sufficiently indicated an intention to exclude the operation of the Acts. A mortgaged estate devolving upon the heir of an intestate mortgagor can in no case be exonerated under these Acts. Personal liability not imposed on heir or devisee. Mortgage comprising realty and personalty. Persons claiming through deceased. The Acts do not impose any personal liability in respect of the mortgage debt upon the heir or devisee of the mortgaged estate, but merely prevent him, in the absence of expressions of contrary intention, from being entitled to call upon the personal representatives of the intestate or testator to pay off the mortgaged debt (a). Where real and personal estate are comprised in the same mortgage, there is nothing in Locke King's Act or the amending Acts which throws the liability to pay the whole debt upon the realty in exoneration of the personalty; in such a case the mortgage debt must, as between the heir or devisee of the realty and the personal representatives of the mortgagor, be borne rateably according to the value of the respective properties at his death (b), unless, on the construction of the instrument of charge, it appears that one or other of the properties should be primarily charged (c). And a similar rule applies where two separate real estates are comprised in the same mortgage (d). In Locke King's Act, the words "as between the different persons claiming through or under the deceased person," include the Crown claiming personalty on an intestacy in default of next of kin of deceased mortgagor. So, where a person made his will, in 1858, devising real estate which was subject to a mortgage, and disposing of his personalty upon trusts which failed, and died leaving a widow, but no next of kin, it was held that the executors took the personalty as trustees for the widow and the Crown in moieties, and that the devisee was not entitled to have any part of the personalty applied in discharge of the mortgage (e). (a) Syer v. Gladstone, 30 Ch. D. 614, 616. (b) Trestrail v. Mason, 7 Ch. D. 655; (c) Lipscomb v.. Lipscomb, L. R. 7 Ex. 502. (d) De Rochefort v. Dewes, L. R. 12 Eq. 502. (e) Deare v. Patrickson, 1 Dr. & S. 182. CHAP. XL. The clause at the end of sect. 1 of Locke King's Act saving the rights of persons claiming under or by virtue of any will, Saving clause. deed or document made before the 1st of January, 1855, seems, as regards wills so made, to make them speak from the date of execution and not from the death of the testator for the purpose of excluding the operation of the Act. The Act does not apply any will made before the Act, though republished after the to Act (f). This latter proviso does not apply to the heir of a mortgagor who had executed the mortgage before January 1st, 1855 (g), nor to an heir claiming a lapsed devise, as he does not claim under the will (h). of the Acts to The words in the Act of 1877 (i), "by way of mortgage or Application any other equitable charge," extend the operation of Locke judgment King's Act, and of the Act of 1867, to a judgment affecting debts. land devised as being of the nature of an equitable charge, so that the devisee is not entitled to have the land exonerated out of the personal estate from the judgment debt (k). In any cases which may arise under the former law, and also in any cases coming under Locke King's Act and the amending Acts, where either a will contains a sufficient indication of intention to exclude the operation of the Acts, or where the value of the mortgaged land is insufficient for the payment of the mortgage moneys in full, the mortgagee will be entitled to claim payment out of the general assets of the deceased mortgagor in a due course of administration. For an examination of the law as to the order of administration of assets, and as to marshalling of assets, reference should be made to the text books dealing with the duties of executors and administrators with regard to these matters. amount to of intention. ii. Contrary Intention.-The Acts do not prescribe any par- What will ticular mode of signifying contrary intention so as to exclude the sufficient operation of the present rule. The intention must be collected indication from the will or other document taken as a whole; and for this purpose the manner in which the mortgaged estate is disposed of is material. (f) Rolfe v. Perry, 3 De G. J. & S. 481. (g) Piper v. Piper, 1 J. & H. 91. See Power v. Power, 8 Ir. Ch. 340. (h) Nelson v. Page, L. R. 7 Eq. 25. (k) Re Anthony, Anthony v. Anthony, CHAP. XL. Settlement. Devise on trust for sale. Mixed fund. Heritable bond. Meaning of "debts." Direction to pay debts out of personalty Limitations in strict settlement per se are not sufficient (7). In one case (m) where lands subject to a mortgage were devised on trust for sale, the Court laid stress on the fact that the proceeds of sale were disposed of in detail after payment of costs, but not alluding to the mortgage, and accordingly held that the mortgaged estate must be exonerated out of the personalty. A direction to pay all debts out of a mixed fund from real and personal estate does not show a contrary intention within the meaning of these Acts (»). A Scotch heritable bond was held, under Locke King's Act, to be included in a direction to pay all just debts (o). But it was also held that a direction to pay "debts" included “mortgage debts" within the meaning of that Act (p). By the Act of 1867 (q) the word "debts" does not include mortgage debts, unless there are express words showing an intention that it should do so, and this applies to a direction to pay debts out of real estate as well as out of personalty (r). A direction to pay all debts and funeral expenses out of the personalty in "exoneration" of the real estate is not sufficient. in exoneration There must be words referring to mortgage debts either exof realty. pressly (s) or by necessary implication. So, where a testator devised his business premises to his son subject to and charged in exoneration of the rest of his estate with his business debts, and devised and bequeathed all the residue of his real and personal estate to trustees upon trust for sale and conversion, and for payment out of the proceeds of his debts other than those thereinbefore provided for, and subject thereto upon specified trusts, it was held that the will sufficiently indicated an intention that all the testator's private debts, including debts secured by mortgages on the property specifically devised to the son, should be paid out of the residuary estate in exoneration of such property (t). (1) Pembrooke v. Friend, 1 J. & H. 134; Coote v. Lowndes, L. R. 10 Eq. 376. (m) Eno v. Tatham, 3 De G. J. & S. 443. (n) Gall v. Fenwick, 43 L. J. Ch. 178; Elliott v. Dearsley, 16 Ch. D. 322, C. A. (0) Maxwell v. Maxwell, L. R. 4 H. L. 506. But see Smith v. Moreton, 37 L. J. Ch. 6. (P) Woolstencroft v. Woolstencroft, 2 De G. F. & J. 347; Rowson v. Harri son, 31 Beav. 207; Brownson v. Lawrance, L. R. 6 Eq. 1. See Sackville v. Smyth, L. R. 17 Eq. 153. (g) 30 & 31 Vict. c. 69, ante, p. 769. (r) Re Newmarch, Newmarch v. Storr, 9 Ch. D. 12, C. A. (s) Re Rossiter, Rossiter v. Rossiter, 13 Ch. D. 355. See Nelson v. Page, L. R. 7 Eq. 25; Leonino v. Leonino, 10 Ch. D. 460. (t) Re Nevill, Robinson v. Nevill, W. N. (1890) 125. Again, where a testator directed his private debts to be paid out of a specified fund, and after devising his real estate to certain persons and giving certain legacies, he bequeathed his residuary personalty to trustees, subject to the payment of his trade debts, it was held that there was a sufficient indication of contrary intention to entitle the devisees to have the real estate exonerated out of the residuary personalty from an equitable charge made by the testator to his bankers to secure an overdrawn trade account (u). A direction to pay off any incumbrance on a particular property, which is not subject to any incumbrance at the testator's death, does not raise any implication of intention to exonerate out of his general personal estate other properties which are subject to incumbrances at his death (†). CHAP. XL. A specific devise of part of the mortgaged premises, leaving Partial devise. the other part to fall into the residue, does not show a contrary intention (r). a A specific devise to a person "absolutely" of land, part of the Devise to A. testator's realty which is subject to a mortgage, coupled with "absolutely." direction to executors to pay legacies out of personalty, is not a sufficient indication of a "contrary intention" (y). A charge of debts on personalty and on residuary realty, or a Charge on specified part of realty, or on residuary realty in aid of per- and realty. sonalty, does not sufficiently indicate an intention to exonerate the mortgaged property (z). Where the contrary intention is shown by the substitution of a specific fund, it has been held that the Acts are excluded only to the extent of the substituted fund, so that if that fund proves insufficient, the right to exoneration is exhausted and the liability reverts to the mortgaged land (a). (u) Re Fleck, Colston v. Roberts, 37 Ch. D. 677. (v) Re Bull, Catty v. Bull, 49 L. T. 592. (x) Sackville v. Smyth, L. R. 17 Eq. 153, questioning Brownson v. Lawrance, L. R. 6 Eq. 1. And see Gibbins v. Eyden, L. R. 7 Eq. 371; Lewis v. Lewis, L. R. 13 Eq. 218. (y) Re Smith, Hannington v. True, 33 Ch. D. 195. (z) Lewis v. Lewis, sup.; Sackville v. Smyth, sup.; Re Newmarch, Newmarch V. Storr, 9 Ch. D. 12. (a) Per Kindersley, V.-C., in Rodhouse v. Mold, 35 L. J. Ch. 67. But Romilly, M. R., without deciding the point, seems to have been of a contrary opinion in Allen v. Allen, 30 Beav. 403. CHAP. XL. Statement of rule. Devise of general estates to different persons. Devise of several estates SECTION III. OF CONTRIBUTION BETWEEN SEVERAL OWNERS OF THE EQUITY OF REDEMPTION, AND THOSE CLAIMING UNDER THEM. Where several estates subject to the same mortgage either originally belong to, or subsequently become the property of different owners, and one of such owners pays off the debt, he has the right to call upon the owners of the other estates to contribute rateably to the payment of the debt, according to a valuation of the several estates taking into account any other incumbrances affecting them respectively (b). This rule will apply in cases where the mortgaged estates of a deceased person are primarily liable to satisfy the debt under Locke King's Act and the amending Acts, and also in cases not within those Acts, where the personalty of the deceased mortgagor is not sufficient to pay the debt in full. Where different estates in mortgage are devised to different persons, each devisee, either primarily, or on a deficiency of assets, takes his estate cum onere (c). But the rule is otherwise where all the estates were by the will charged with the payment of debts. So, in Carter v. Barnardiston (d), it was held that if one seised of Whiteacre and Blackacre mortgage the former, and then by his will devise Whiteacre to A., and Blackacre to B., the devisee of the former shall compel the latter to contribute. On the like principle, if several estates are comprised in the same mortgage, and are devised to several persons, they must all contribute; so also if the estates in mortgage were freehold and copyhold respectively, and descended to different heirs (e). The principle of contribution does not apply where several estates, subject to a mortgage, are devised to the same person so as to entitle the person claiming one of the estates under him to throw the mortgage debt, or any part of it, upon the other estates which have been devised to or devolved upon different persons. The question whether he is so entitled must depend not upon any (b) Aldrich v. Cooper, 8 Ves. 390; Clarke v. Brereton, 1 Jo. 165; Johnson V. Child, 4 Ha. 87. (c) Halliwell v. Tanner, 1 R. & My. 633; Symons v. James, 2 Y. & C. C. C. (d) 1 P. Wms. 506. See Irvine v. Ironmonger, 2 R. & My. 531; Middleton v. Middleton, 15 Beav. 450; Barnes v. Racster, 1 Y. & C. C. C. 401. (e) Aldrich v. Cooper, 8 Ves. 390. |